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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Prakash Gupta, J.
M/s Rajkumar Vishandas – Appellant
Versus
M/s Rajkumar Vishandas – Respondent
S.B. Civil Revision Petition No. 9 of 2021
Decided On : 01-04-2022
res-judicata - infringement and passing off of trade mark - Indian Partnership Act, 1932, Trade Mark Act, 1999, Arbitration & Conciliation Act, 1996 - The court discussed the applicability of res-judicata, Order 2 Rule 2 CPC, and Section 5 read with Section 34 of the Arbitration and Conciliation Act, 1996. The court also considered the objection of deficit court fee and referred to various judgments to support its decision.
Fact of the Case:
The plaintiff filed suits for infringement and passing off of trade mark, permanent injunction, damages, and rendition of accounts against the defendants. The defendants filed applications under Order 7 Rule 11 CPC, which were dismissed by the trial court. The defendants then filed revision petitions.
Finding of the Court:
The court found that the objections raised by the defendants were self-contradictory and not applicable. The court also held that the findings of the trial court were just and proper, and there was no illegality, perversity, or jurisdictional error in the impugned orders.
Issues: The issues included the applicability of res-judicata, Order 2 Rule 2 CPC, Section 5 read with Section 34 of the Arbitration and Conciliation Act, 1996, and deficit court fee.
Ratio Decidendi: The court relied on various judgments to establish the inapplicability of the objections raised by the defendants and upheld the findings of the trial court.
Final Decision: The revision petitions were dismissed, and the findings of the trial court were upheld.
JUDGMENT
1. These two revision petitions have been filed by the petitioner-defendant (for short, 'the defendant') against the order dated 16.12.2020 passed by the trial court whereby the applications filed by the defendants under Order 7 Rule 11 CPC in Civil Suit Nos. 99/2020 and 100/2020 have been dismissed.
2. Facts of the case are that the respondent-plaintiff (for short, 'the plaintiff') filed two suits for infringement and passing off of trade mark, permanent injunction, damages and rendition of accounts against the defendants (i) M/s. Rajkumar Vishandas & Sons and (ii) M/s. Rajkumar Vishandas Corporation. In the said suits, it was averred that the plaintiff is a registered firm under the Indian Partnership Act, 1932. The said partnership firm was established in the year 1961 by the grand father of Rajesh Thawrani and Prakash Thawrani. In the year 1986, the said partnership firm was converted into a proprietorship firm and on 1.4.2021, it was again converted into a partnership firm, of which Rajesh Thawrani, Prakash Thawrani, Rajkumar Thawrani and Bhagwan Das Ji were the partners. After the death of Bhagwan Das Ji on 12.8.2013, dispute arose between Rajesh Thawrani, Prakash Thawrani and Raj Kumar Thawrani, partners of the firm. On 3.4.2015, Raj Kumar Thawrani wrote a letter to the other partners as well as firm and retired from the said partnership firm voluntarily. In this way, on retirement of Raj Kumar Thawrani from the partnership firm, Smt. Gauri Thawrani was inducted as a partner of the firm, for which amended partnership deed was executed and an entry was made in the record of Registrar of Firms.
3. It was also averred that thereafter the said partnership continued. After voluntary retirement of Raj Kumar Thawrani from the said Partnership firm on 3.4.2015, he filed a petition before Rajasthan High Court seeking his share in the said Partnership Firm, upon which Hon'ble Mr. Justice A.C. Goyal (Retd.) was appointed as an Arbitrator, who on 2.6.2018, while dismissing the claim petition and allowing the counter claim, awared a sum of Rs. 51,10,029/- in favour of Raj Kumar Thawrani. Against the said award, objections were filed and the same are pending adjudication before the competent court.
4. It was also averred that the said partnership firm has also been registered under the Trade Mark Act, 1999 and its registration is valid till 6.7.2028. Despite the fact that it is within the knowledge of the defendants that the plaintiffs are doing business in the name and style of 'M/s. Raj Kumar Vishandas', the defendant started running a business in the name and style of 'M/s. Rajkumar Vishandas and Sons' and M/s. Rajkumar Vishandas Corporation.
5. The defendant filed applications under Order 7 Rule 11 CPC and raised objections with regard to res-judicata and deficit court fees, which came to be dismissed by the trial court vide its order dated 16.12.2020. Hence, these revision petitions have been filed.
6. So far as issue of res-judicata is concerned, learned counsel for the defendant concedes that on the basis of res-judicata, plaint cannot be rejected under Order 7 Rule 11 (d) CPC.
7. Learned counsel further submits that the plaintiff is doing business in the name of two firms namely "Rajkumar Bisandas and Sons"and "Rajkumar Bisandas & Corporation". The plaintiff-claimant filed a claim petition before the Arbitrator claiming compensation to the tune of Rs. 1.50 crore, which was dismissed by the Arbitrator. Against the award passed by the Arbitrator, objections were filed by the plaintiff before the Commercial Court concerned and the same are pending adjudication. He further submits that the objection with regard to Trade mark was not raised by the plaintiff-claimant before the Arbitrator and the same was relinquished, therefore, the plaintiff cannot raise the said objection in the suits filed by it before the trial court and the suits are barred by the provisions of Order 2 Rule 2 CPC. Learned counsel further submits that since
AI
The main legal point established in the judgment is the inapplicability of the objections raised by the defendants under Order 7 Rule 11 CPC, res-judicata, Order 2 Rule 2 CPC, and Section 5 read with....
A suit dismissed on grounds of res judicata is valid if the issues have been previously adjudicated between the same parties, preventing re-litigation of the same matters.
The principle of res judicata prohibits re-litigation of claims already adjudicated, asserting that fresh grounds for a suit must be established, as emphasized by various sections of the Arbitration ....
A suit cannot be instituted by an unregistered partnership firm, as per Section 69 of the Indian Partnership Act, rendering such suits barred by law.
The main legal point established in the judgment is the scope of revisional powers under Section 115 of the CPC and the principles of rejection of plaint under Order VII Rule 11 of the CPC.
The principle of res judicata bars re-litigation of matters already decided, confirming that the earlier judgment is binding and the current suit is not maintainable.
The Court emphasized that on an application under Order VII Rule 11 CPC, only the contents of the plaint are to be considered, and the alleged violation of statutory law cannot be determined without ....
The principle of res judicata cannot serve as a basis for rejecting a plaint under Order VII Rule 11 of the CPC; it must be framed as a preliminary issue in trial.
An application for plaint rejection under Order 7 Rule 11 CPC only evaluates the plaint's contents without considering the defendant's defense. Res judicata principles need comprehensive analysis bey....
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